Bishop v The Crown [1995] CKCA 2; CA 07.25 (20 September 1995)

IN THE COURT OF APPEAL OF THE COOK ISLANDS
HELD AT AUCKLAND
C.A. NO. 7/25
C.R. NO. 455, 456, 457, 460,461,492, 463/94

BETWEEN

TEKURA BISHOP
of Aitutaki, Tour Operator
APPELLANT

AND

THE CROWN
RESPONDENT

Coram: Sir Duncan McMullin (Presiding)
Hillyer, JA
McHugh, JA

Counsel: MC Mitchell for Appellant
TP Browne for Respondent

Hearing: 8 September, 1995
Date of Judgment: 20 September, 1995

JUDGMENT OF THE COURT DELIVERED BY HILLYER, JA

This is an appeal against a sentence imposed in the High Court of the Cook Islands at Rarotonga. The Appellant pleaded guilty to five charges of forgery, one of false accounting and one of theft. The maximum penalties are ten years for the forgery charges, seven years for the false accounting and five years for the theft. He was sentenced to four years imprisonment on each of the forgery and the false accounting charges and to two years imprisonment on the theft charge, all terms to be concurrent.

The Appellant was Postmaster at Aitutaki and as such, in some cases, had access to funds and because of his important position in other cases was entrusted with funds, in particular from what were known as the Avarua Constitution and the Maru-O-Toi Queen Carnival Funds.

In a full and careful decision the learned sentencing Judge went into the background at some length, considered a large number of factors and came to the conclusion that the proper penalty, having regard to penalties imposed for other similar offences, would have been six years imprisonment. He reduced that to four years having regard to the plea of guilty that had been entered by the Appellant and the shame that had been brought upon the Appellant and his wife and family. Unfortunately the learned sentencing Judge had been misinformed as to the penalties which had been imposed for like offences. We have had put before us a schedule of penalties that have been imposed, going back to 1981, in which there are very few terms of imprisonment and those only in cases where there have been very serious offences and previous convictions involved. This schedule had been obtained from the Cook Islands Police National Headquarters and was accepted by Counsel for the Crown. Indeed, Mrs Browne very fairly said that in the light of that information she could not maintain that the penalties were appropriate.

The Appellant had never previously appeared before the Court and he has lost his position as Postmaster in Aitutaki. The Probation Officer's report refers to the Appellant as being a "loving and generous person with a high standing in the Cook Islands Christian Church and at the community level". He is the father of five children and a term of imprisonment would result in their suffering because of his inability to earn money while in prison to keep them.

The Police report indicated that the Appellant had benefited personally from the forgery offences but evidence put before us by his Counsel indicated that this may well not have been the case. The position is a little confused but it does appear that most, if not all, of the money that he received as a result of the forgery charges had been passed on or returned to the people who were entitled to it. In other cases, those whose signatures had been forged have sworn affidavits to the effect that they had no objection.

As far as the theft charge is concerned, a substantial amount of that money has been returned to those who were entitled to it and his brother has undertaken that he will make restitution on behalf of the Appellant of all moneys that are outstanding and have been taken by the Appellant.

In the circumstances we have come to the conclusion that a term of imprisonment is not necessary. The offences, of course, are serious and it is only in the light of the information that has been put before us that we have come to the conclusion that a community based sentence would be appropriate.

The appeal is therefore allowed and in place of the sentences imposed the Appellant will be sentenced to community service under the Criminal Justice Amendment Act 1976. He will serve in a community service group for a period of 12 months, which is the maximum time permitted under s.8 of the Act. He is to report and do work for one day of each week during that period and is to work for a period of four hours on that day. The day is to be specified by the controller of the group and is to be, in accordance with s.14(6) of the Act, such as to avoid interference so far as practicable with his attendance at any educational institute or his work or his genuine religious observances.

In addition there will be an order that he make restitution of all moneys that he has received as a result of the forgery, false accounting and theft offences. The terms on which he is to make restitution are to be settled by the Probation Officer.

Decision

Appeal allowed. Terms of imprisonment vacated. Community service and restitution ordered.

BY THE COURT
P.G. HILLYER, J.A.